Thirteen months ago, I wrote about the 9th Circuit Court of Appeal’s en banc hearing to consider TASER issues arising out of two cases, “Mattos” and “Brooks.” You may review that article here. The court recently issued its ruling that officers used unconstitutional, excessive force in both cases. However, the court granted the officers “qualified immunity” in both cases because the law on TASER use was unsettled.
The Brooks case involved a pregnant woman who refused to sign a traffic citation, thus was subject to arrest. She tightened her hands on the steering wheel and refused to submit despite much pleading from the officers and their sergeant. Ultimately, she was drive-stunned on her thigh, arm, and her neck for five seconds each before she was extracted from her car.
Dissenting Opinion
There is much confusion in the ranks. In fact, there is much confusion at the court! In the decision, the chief judge of the 9th Circuit Court of Appeals — dissenting from the majority of his colleagues — wrote, in part:
...Should the officers have slammed Brooks’s fingers with a baton to make her let go of the steering column? Forcibly ripped her from the driver’s seat, smashing her abdomen against the steering wheel? Doused her with pepper spray or some other noxious chemical...?
The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.
Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.
Are you in the jurisdiction of the 9th Circuit? If so, you need to know that in Brooks v. Seattle, the court ruled that before each drive-stun, the officer must give a reasonable opportunity for the subject to comply with directions; must have a reasonable perception that the subject is capable of complying but is “actively resisting”; must give a warning of the imminent application of force; must allow the subject time “to recover from the extreme pain” experienced, a reasonable opportunity to “gather” themself, and a reasonable opportunity to “consider [their] refusal to comply” with commands before each drive-stun application; and must write in their report that the officer followed these guidelines.
The attorneys who defended the officers in the Brooks v. Seattle case have decided to appeal to the United States Supreme Court. Here is an excerpt from the Petition for Writ of Certiorari:
Questions Presented
The plaintiff was under arrest and actively resisting officers’ efforts to remove her from her car. Officers determined the best alternative to overcome her resistance was pain compliance by use of a drive-stun TASER. They warned her and then applied the TASER. Plaintiff was taken into custody without injury.
1.) Did the Ninth Circuit err in finding the TASER use unconstitutional where (a.) it was the least risky pain compliance option available, and (b.) the decision is in conflict with the Graham v. Connor holding that an arrest necessarily carries with it the authority to use some degree of force?
2.) Did the Ninth Circuit err in holding that the plaintiff stated a Fourth Amendment excessive force claim despite declaring that the record was insufficient to assess the level of force presented by the drive-stun TASER, particularly where the court failed to address whether any less-risky alternatives were available to the officers?
3.) Where the officers chose the least risky force option, should the Ninth Circuit have found the use of the TASER constitutional as a matter of law, the result reached by the original Ninth Circuit panel?
4.) Does the Ninth Circuit’s opinion conflict with other circuits’ decisions on TASER pain compliance applications in similar circumstances?
Friends, let me be clear. The drive-stun tactic might be helpful to convince an actively resisting subject like Brooks to let go of the steering wheel and submit to arrest. A brief drive-stun or two might convince an arrested-but-still-resisting individual to get in the back of the police car, for another example.
But I would also point out that there is no magic in applying a drive-stun for a full, five-second standard cycle. When you are trying to convince an arrested suspect to get in the back of your police car, one or two brief drive-stun applications might just do the trick for most folks, and it would certainly be less force (and potentially viewed more reasonable by a judge and jury) than the longer cycle.
Also, as I’ve repeatedly noted before, the drive-stun tactic is not particularly useful to attempt to physically subdue and control an actively or aggressively resisting person during a close-quarters struggle. As a pain-compliance tool, the drive-stun tactic often causes subjects to react more violently, without controlling them.
TASER users who seek to control someone should prefer using probe mode rather than drive-stun. Properly deployed TASER probes will provide instant neuromuscular incapacitation — drive-stun is a pain-compliance tool, not an incapacitator in most circumstances.
You’ve probably read me or heard me on this before... When using probes, take several giant steps backward from the subject! In a breaking tactical situation, experience has shown that most officers are much closer to the subject than they think they are. They launch the probes, then wonder why the subject doesn’t go down, then they write in their report that the TASER didn’t work. The only usual way to get a really good probe spread is to have the muzzle of the TASER a good eight to 12 feet away from the target.
The 2011 PERF ECW Guidelines
On a related note, I recently had the pleasure of attending a use-of-force seminar by well-regarded attorney Missy O’Linn of Manning & Kass, Ellrod, Ramirez, Trester in Los Angeles. She is an ex-police officer and an awesome police defense attorney, who also occasionally handles cases for TASER International.
In her lecture, she put up a slide from the Police Executive Research Forum, from the introduction to its 2011 Electronic Control Weapon Guidelines:
The 2011 guidelines are based on a set of principles that foster the responsible and accountable use of ECWs, while recognizing that they are an appropriate tool for officers who must resort to use of force. These guiding principles are the following:
1.) ECWs should be considered less-lethal weapons.
2.) ECWs should be used as a weapon of need, not a tool of convenience.
3.) Officers should not over-rely on ECWs in situations where more effective and less risky alternatives are available.
4.) ECWs are just one of a number of tools that police have available to do their jobs, and they should be considered one part of an agency’s overall use-of-force policy.
5.) In agencies that deploy ECWs, officers should receive comprehensive training on when and how to use ECWs.
6.) Agencies should monitor their own use of ECWs and should conduct periodic analyses of practices and trends.
7.) Agencies should consider the expectations of their community when developing an overall strategy for using ECWs.
Missy lectured that she agreed with these principles.
So do I.
As the legal environment for TASERs and other nonlethal weapons continues to evolve, you and your agency would do well to stay up to date with your policy development and training practices. It is important that your officers understand when it is reasonable to use various tools, when it is not, and how to properly document uses so they will stand up in court.
